International actors have played an active role in the administration of territories over the past two centuries. This book analyses the genesis and law and practice of international territorial administration, covering all experiments from the Treaty of Versailles to contemporary engagements such as the conflict in Iraq. The book discusses the background, legal framework and practice of international territorial administration, including its relationship to related paradigms (internationalisation, mandate administration, Trusteeship administration and occupation). This is complemented by a discussion of four common legal issues which arise in the context of this activity: the status of the territory under administration, the status and accountability of administering authorities, the exercise of regulatory powers by international administrations, and the relationship between international and domestic actors. Alongside surveys of the existing approaches and conceptual choices, the book also includes relevant case-law and practice and lessons learned for future engagements.

This book studies the struggle to enforce international human rights law in federal courts. In 1980, a federal appeals court ruled that a Paraguayan family could sue a Paraguayan official under the Alien Tort Statute – a dormant provision of the 1789 Judiciary Act – for torture committed in Paraguay. Since then, courts have been wrestling with this step toward a universal approach to human rights law. The book examines attempts by human rights groups to use the law to enforce human rights norms. It explains the separation of powers issues arising when victims sue the United States or when the United States intervenes to urge dismissal of a claim. Moreover, it analyzes the controversies arising from attempts to hold foreign nations, foreign officials, and corporations liable under international human rights law. While Davis’s analysis is driven by social science methods, its foundation is the dramatic human story from which these cases arise.

Friday, June 27, 2008

On Thursday, June 19th, the International Criminal Tribunal for Rwanda, for the third time in as many weeks (see previously here and here), denied a request to transfer a case (this time, that of Ildenphonse Hategekimana) to Rwanda. The Trial Chamber's decision is here; Hirondelle News's report is here. These decisions are being appealed.

Yesterday, the Senate Foreign Relations Committee submitted its Report (Exec. Rept. 110-10) on the Protocol of Amendments to the Convention on the International Hydrographic Organization, done at Monaco on April 14, 2005 (Treaty Doc. 110-9). The Committee favorably reported the Protocol on April 22nd, without holding a hearing. The proposed resolution of advice and consent to ratification contains no reservations, understandings, or declarations. The Protocol was transmitted to the Senate on October 23, 2007.

The principal aim of this work is to provide a forum for leading international lawyers with experience and interest in Africa to address a broad range of intellectual challenges concerning the contribution of African states and peoples to international law. As such, the volume addresses orthodox topics of international law - such as jurisdiction and intervention - but tackles them from an African perspective, and seeks to ask whether, in each case, the African perspective is unique or affirms existing arrangements of international law. The book cannot come at a more important time. While international legal discourse has been captured by the challenge of terrorism since September 11, 2001, there are clear signs that other issues are returning to the fore. Political interest in Africa has undergone a global revival, and the OAU has been transformed into the African Union. Infrastructural challenges, along with those taking place in regional contexts, have effectively mapped a new politico-legal landscape for Africa. This, and more, is explored, and the key normative questions are addressed in a series of essays by leading Africanist scholars.

The 2008 Annual Conference of the British Institute of International and Comparative Law will be held on Friday 17 October 2008. The theme of the conference will be: ‘Climate Change its Challenges for the International Legal System’.

This Call for Papers is for new scholars to submit a proposal for a paper to be delivered at the Conference. It is designed to encourage new academics, doctoral and masters students, and new legal professionals. A list of panels and a brief summary of the issues to be addressed by them is set out below. This is not the final programme and the information attached is for general guidance only. Papers on subjects within these themes or more generally on the subject of climate change and international law are sought.

Interested persons should submit a synopsis (350-600 words) of their proposed presentation no later than Monday 14 July 2008 at 5.00pm. The synopsis should provide an outline of the proposed paper and should, inter alia, identify the argument to be advanced, and the major issues to be addressed. Proposal submissions should be accompanied by a short CV (no more than 2 pages). The submission should indicate the author’s name, institutional affiliation and contact details.

All papers should be sent in the first instance by email to Anna Riddell (BIICL) at a.riddell@biicl.org. The proposals will then be considered by members of the Conference Steering Group. The outcome of the review will be announced at the end of July 2008.

Conference Panels:

Impact of Climate Change on International Law-makingMany areas of international law are affected, directly and indirectly by climate change. This panel will explore the impact on international law-making in areas such as international economic law, humanitarian law, environmental law, law of the sea, and human rights.

Challenges for International Law-Making on Climate Change from Outside the LawClimate change issues are being discussed in many disciplines. This panel will comprise speakers who encounter international law in their work, such as scientists, business people, economists and diplomats.

Climate Change and National and Comparative LawThere are a number of different approaches to climate change being undertaken in various countries and regions. This panel comprises speakers from a range of national and regional backgrounds discussing their legal approaches in relation to climate change.

Wednesday, June 25, 2008

On June 17th, Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, wrote current Security Council President Zalmay Khalilzad, U.S. Permanent Representative to the United Nations, to report Serbia's noncompliance with a Trial Chamber order in the case Prosecutor v. Milutinovic. (ICTY press release here; UN News Centre report here; Reuters story here.) The court order required Serbia to serve a summons and to take other steps to ensure that General Aleksander Dimitrijevic, former head of the Yugoslav's Army Security Administration, appear at trial and give testimony in the case.

In their efforts to define “quasi-sovereignty” in the late nineteenth century, colonial officials referred to principles of international law but also increasingly predicted the absorption of imperial sub-polities into a single legal order. At the same time, their efforts began to shape an understanding of “imperial law” as a distinctive kind of law. This article examines colonial officials’ efforts to define quasi-sovereignty in the context of a crisis in the 1870s involving the “trial” of an Indian ruler for plotting to poison a British Resident in Baroda. The case shows that conflicts over jurisdiction, border disputes, and other tensions preoccupied colonial officials and led them to devise increasingly complex typologies of legal territory and to propose new rationales for the suspension of law. The article then traces similar trends in Basutoland in southern Africa and U.S. Indian law in the United States, showing the global circulation of ideas about quasi-sovereignty and suggesting that “imperial law” is best understood as a variant of constitutional law centered on the problems of describing the limits of law and defining new categories of legal distinction for subordinate territories and polities.

Yesterday, at a public hearing, an International Criminal Court Trial Chamber postponed a decision on whether to release Thomas Lubanga Dyilo. Lubanga's release may be ordered because the Trial Chamber determined on June 13th that the prosecution had not disclosed potentially exculpatory evidence to the accused, as it is required to do by the Court's Statute; consequently, the Trial Chamber stayed the proceedings. The Prosecutor had argued that that evidence, which it had received in confidence from the United Nations, was protected by Article 54 of the Statute. Tuesday's postponement was due to the Prosecutor's submission on Monday of a request for leave to appeal the Chamber's June 13th decision. Decisions on these issues - leave to appeal and the accused's release - are expected next week, unless a satisfactory method is found before then that would allow for judicial review of the contested evidence.

This book explains the rules for interpretation of treaties and gives examples of their application in national and international jurisdictions. The rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties now apply to virtually all treaties which may be encountered in an international context and also within national legal systems where treaties have an impact on a large and growing range of matters.

The rules of treaty interpretation differ somewhat from typical rules for interpreting legal instruments and legislation within national legal systems. Lawyers, and also some administrators, diplomats, and officials at international organisations, are increasingly likely to encounter issues of treaty interpretation which require not only knowledge of the relevant rules of interpretation, but also how these rules have been, and are to be, applied in practice. Now that the codified rules of treaty interpretation have been in force for some twenty-five years, there is a considerable body of case-law on their application. This case-law, combined with the history and analysis of the rules of treaty interpretation, provides a basis for understanding this most important task in the application of treaties internationally and within national systems of law. Any lawyer who ever has to consider international matters, and increasingly any lawyer whose work involves domestic legislation with any international connection, is at risk nowadays of encountering a treaty provision which requires interpretation, whether the treaty provision is explicitly in issue or is the source of the relevant domestic legislation. This book provides a guide to interpreting treaties properly in accordance with the modern rules.

Tuesday, June 24, 2008

Today, at its business meeting, the Senate Foreign Relations Committee ordered favorably reported the International Convention Against Doping in Sport (Treaty Doc. 110-14). The treaty was transmitted to the Senate on February 6th, and the SFRC held a hearing on May 22nd. Expect the full Senate to provide its advice and consent shortly, as it is clear that the Convention's ratification is being timed ("fast-tracked" might be the better expression in this context) to coincide with the Olympic Games later this summer.

The writers on jurisprudence who are well remembered today as the American Legal Realists focused their analyses of law and their reform agendas entirely upon domestic law and legal process. The Stanford law professor Joseph Walter Bingham (1878-1973) was an important exception, in that he made international law a principal focus of his work. Bingham has been largely neglected by historians of Legal Realism and its antecedents. Yet his iconoclastic, antiformalist approach to jurisprudence in articles on common law and public law published in the 1910s and 1920s were later explicitly recognized by Llewellyn, Pound, and Frank as having expressed some of the central canons of later-day Legal Realism. The present article thus is concerned, first, to locate Bingham’s largely forgotten role in the history of Legal Realism and American jurisprudence more generally. Second, it offers an appraisal of how Bingham took into the arena of legal and policy discourse in international law the same antiformalism and reformist philosophical approach as had marked his early writings. His reform ideas in the late 1930s regarding territorial waters and the definition of “high seas” won him wide attention. Welcomed by some academics and policy makers, his ideas for reforming ocean law were roundly denounced by traditionalists in the academy (now including Pound!) as being a provocative to Japan when war was threatening; and, beyond that, as a crude abandonment of “rule of law” that put pragmatic concerns about legal principle. World War II changed the terms of the ocean-law debate, in which Bingham remained an active reformist contributor. The core idea of his reform agenda was that a realistic view of new technology and ocean resources required abandonment of the long-established customary “three-mile rule” that limited the jurisdiction in their offshore waters of coastal states. He did not live to see this idea, once regarded as so hopelessly radical, incorporated formally into international law when the 1982 U.N. Law of the Sea Convention adopted a 200-mile limit for an Exclusive Economic Zone for coastal states - now a key element in the new global legal order for the oceans.

Jill Marshall, A Right to Personal Autonomy at the European Court of Human Rights

Ivana Radacic, Rape Cases in the Jurisprudence of the European Court of Human Rights: Defining Rape and Determining the Scope of the State's Obligations

Catherine J. Van de Heyning, "Is it Still a Sin to Kill a Mockingbird?" Remedying Factual Inequalities through Positive Action: What can be Learned from the US Supreme Court and European Court of Human Rights Case Law?

In “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order,” Francine Hirsch investigates the role of the Soviet Union in the Nuremberg Trials of 1945–1946. She argues that Nuremberg is still seen through the distorting lens of the Cold War, suggesting that it is high time for a new narrative of the trials that gives a full accounting of the role of the Soviet Union. Hirsch evaluates the contributions that the USSR and its legal experts made to the jurisprudence of the trials. She also looks at the efforts of the Soviet Union’s secret Commission for Directing the Nuremberg Trials to influence the course and outcome of the trials - and to affect the postwar moment in general. She argues that Nuremberg became one of the first fronts of postwar competition between the USSR and its former wartime allies - a competition in which the USSR did not fare well. The United States proved far more adept at shaping the trials and using them to advance a postwar agenda. It seized control of Nuremberg and made “the Nuremberg narrative” its own. In the end, Hirsch suggests that although Nuremberg was a failure for the USSR, it taught the Soviets important lessons that shaped their development as an international power.

Today, the Supreme Court of the United States granted the petition for certiorari in Ministry of Defense and Support for the Armed Forces of the Islamic Republic of Iran v. Elahi (No. 07-615). The petition is here; the brief in opposition is here; the petitioner's reply is here; the amicus brief of the United States is here. The opinion below - that of the Ninth Circuit - is here. Here's the question presented by the petition:

Is an attachment against foreign sovereign property permissible when that property is "at issue in claims against the United States before an international tribunal," and that property is not a "blocked asset," pursuant to the terms of the 2000 Victims of Trafficking and Violence Protection Act and the 2002 Terrorism Risk Insurance Act?

John B. Bellinger, Legal Adviser to the Secretary of State, has an op-ed in today's New York Times arguing that existing international legal regimes, including the Law of the Sea Convention, adequately govern contemporary issues pertaining the use of the Arctic. Consequently, instead of working to draft a new treaty specific to the Arctic, the United States should rely on the multilateral mechanisms currently in force and ratify the Law of the Sea Convention. Here's Bellinger's essay:

With the Arctic ice melting, anticipated increases in Arctic shipping, tourism and economic activity, and Russia’s flag-planting at the North Pole last summer, there has been much talk in the press about a “race to the Arctic” and even some calls for a new treaty to govern the “lawless” Arctic region.

We should all cool down. While there may be a need to expand cooperation in some areas, like search and rescue, there is already an extensive legal framework governing the region. The five countries bordering the Arctic Ocean - the United States, Canada, Denmark, Norway and Russia - have made clear their commitment to observe these international legal rules. In fact, top officials from these nations met last month in Greenland to acknowledge their role in protecting the Arctic Ocean and to put to rest the notion that there is a Wild West-type rush to claim and plunder its natural resources.

Existing international law already provides a comprehensive set of rules governing use of the world’s oceans, including the Arctic. The law enshrines navigational rights and freedoms for military and commercial vessels. It also specifies the rights of coastal nations in offshore marine areas. Setting aside the unfortunate flag-planting on the North Pole (a stunt with no legal significance), Russia has been following international procedures for identifying the legal extent of its boundaries, including its continental shelf.

Other solid international rules also apply in the Arctic. In instances where the maritime claims of coastal nations overlap, international law sets forth principles for them to apply in resolving their disputes. As for protecting the marine environment, the law spells out both national and internationally agreed pollution control measures.

As one example, the United Nations’ International Maritime Organization has produced treaties that limit pollution from various sources, including ships and ocean dumping. It has also developed safety guidelines for ship operations in hard-to-navigate ice-covered areas. What’s more, the Arctic Council, an eight-nation diplomatic forum, is working to strengthen its already existing guidelines on oil and gas activities.

Some nongovernmental organizations and academics say that we need an “Arctic treaty” along the lines of the treaty system that governs Antarctica. Though it sounds nice, such a treaty would be unnecessary and inappropriate. The situations in the Arctic and the Antarctic are hardly analogous. The Antarctic Treaty, signed in 1959, governs a continent surrounded by oceans - a place where it was necessary to suspend claims to sovereignty in order to promote peace and scientific research. The Arctic, by contrast, is an ocean surrounded by continents. Its ocean is already subject to international rules, including rules related to marine scientific research, and its land has long been divided up, so there are few disputes over boundaries.

So what should the United States do about the Arctic? For starters, it should do nothing to advance a new comprehensive treaty for the region. Instead, it should take full advantage of the existing rules by joining the Law of the Sea Convention. The convention, now before the Senate, would codify and maximize international recognition of United States rights to one of the largest and most resource-rich continental shelves in the world - extending at least 600 miles off Alaska.

Canada, Denmark, Norway and Russia are parties to the convention and they are already acting to protect and maximize their rights. The United States should do the same. Signing on would do much more to protect American security and interests in the Arctic than pursuing the possibility of a treaty that we really don’t need.

This book is the first complete biography of Raphael Lemkin, the father of the United Nations Genocide Convention, based on his papers; and shows how his campaign for an international treaty succeeded. In addition, the book covers Lemkin's inauguration of the historical study of past genocides.

Paul Meerts (Netherlands Institute of International Relations) has published Culture and International Law (T.M.C. Asser Press 2008). Here's the abstract:

How do different cultures deal with international law and how does International Law influence the rules and regulations of these cultures? Is International Law an effective tool in protecting cultural heritage, especially in wartime? Does it protect the heritage of cultures in a balanced way? And first of all: what is culture, what is International Law? These important questions were dealt with at the Fourth Conference From Peace to Justice of the Hague Academic Coalition (HAC), which was held in April 2007 in The Hague, The Netherlands. Valuable views, from different angles and perceptions, were presented and discussed. This book is the fruitful result of this Conference, presenting valuable insights, opinions and conclusions of the participants in the subject matter. It will trigger an international debate and search for clarity on these issues. Anyone interested or in any way involved in the harmonization of culture and international law is invited to join the debate, thus contributing to the realization of another important step on the road from peace to security.

Today’s international war crimes tribunals lack police powers, and therefore must prod and persuade defiant states to co-operate in the arrest and prosecution of their own political and military leaders. Victor Peskin’s comparative study traces the development of the capacity to build the political authority necessary to exact compliance from states implicated in war crimes and genocide in the cases of the International War Crimes Tribunals for the former Yugoslavia and Rwanda. Drawing on 300 in-depth interviews with tribunal officials, Balkan and Rwandan politicians, and Western diplomats, Peskin uncovers the politicized, protracted, and largely behind-the-scenes tribunal-state struggle over co-operation.